While they've both called for ending the influence of big money in politics, both presidential candidates are taking advantage of it. (Photo by Drew Angerer/Getty Images)
Earlier this month, the Campaign Legal Center filed complaints alleging that three super PACs — one supporting Hillary Clinton and two supporting Donald Trump — have violated federal election law by coordinating with the two presidential candidates.
Clinton’s and Trump’s coordination schemes are without precedent in a presidential campaign. These schemes threaten to crumble one of the few bulwarks that remain against a completely lawless campaign finance landscape in a post-Citizens United world.
Here’s why “coordination” matters.
An individual can only give $2,700 directly to a candidate, but after Citizens United, any donor with deep pockets — a billionaire, a corporation, a trade association or another special interest group disguised as a “social welfare” nonprofit — can give million dollar-plus donations to “independent” groups like super PACs.
The Citizens United court assumed that a group that spends independently of a candidate poses little risk of influencing or corrupting that candidate. But if a super PAC is working closely with the campaign, then a massive donation to the super PAC is effectively a contribution to the candidate — and poses the same risk of corruption as a billionaire handing Clinton or Trump a briefcase filled with $100 bills.
As the Supreme Court observed in a 2001 decision, “coordinated expenditures are as useful to the candidate as cash.”
Put simply, the reason super PACs can accept unlimited donations is because they are independent. But under federal law, if they aren’t independent, they can’t accept unlimited donations.
It is up to the Federal Election Commission (FEC) to enforce its own rules and preserve that independence.
In the six years since Citizens United, many candidates have pushed the envelope on coordination rules to inch closer to supposedly “independent” super PACs.
But the super PACs supporting both Trump and Clinton are making aggressive and unprecedented efforts to blow new holes in the federal laws and regulations governing coordination.
In Trump’s case, two of the candidate’s senior staffers formed the Rebuilding America Now super PAC almost immediately after leaving the campaign — in violation of FEC rules requiring a 120-day “cooling off” period, intended to keep former staffers from using their knowledge of a campaign’s strategy and needs to develop ads for an “independent” group. The former Trump staffers make the legally baseless claim they can ignore the 120-day rule because they weren’t paid by the campaign. If that were actually the rule, a political operative could “volunteer” for a campaign for just long enough to learn about its plans and needs, then jump to a super PAC and start collecting huge checks, entirely undermining the rule’s anti-coordination purpose.
Another pro-Trump super PAC, Make America Number 1, is also intertwined with the Trump campaign. Trump’s campaign manager and deputy campaign manager are both former presidents of the super PAC — and reportedly were hired at the behest of Make America Number 1’s chair, Rebekah Mercer. What’s more, both the Trump campaign and the super PAC use the same data analytics firm — owned by the Mercer family — to target voters and develop ad content.
The Mercer family, which has poured millions into Make America Number 1, appears to have a level of influence over the campaign commensurate with having made millions in contributions directly to Trump. This may not be surprising, since as the Supreme Court has noted, coordinated expenditures “will be as useful to the candidate as cash.”
In Clinton’s case, the super PAC Correct the Record asserts it can coordinate directly with the Clinton campaign as long as it doesn’t run paid advertising. Clinton’s attorneys are relying on a narrow 2006 FEC regulation that declared that content posted online for free, such as blogs written by unpaid volunteers, is off limits from regulation.
But as recently hacked documents reveal, Correct the Record is not a volunteer blogging operation, and most of its activities don’t take place on the internet at all. Instead, it is a $6 million professional opposition research, surrogate training and messaging operation staffed with paid professional employees and operating out of a Washington office building.
Because Correct the Record is effectively an arm of the Clinton campaign, million-dollar-plus contributions to the super PAC are indistinguishable from contributions directly to Clinton — and pose the same risk of corruption.
If either super PAC is allowed to get away with these schemes, there is no doubt that these new loopholes will be exploited in future campaigns by billionaires and dark-money operatives across the political spectrum, further eviscerating the few campaign finance limits that remain.
There’s no ambiguity with the Supreme Court’s mandate that super PACs and nonprofits must remain independent of campaigns for a healthy democracy.
Perhaps Clinton and Trump are expecting that the dysfunctional Federal Election Commission will decline to enforce the campaign finance laws that still exist. Yet we are hoping that these violations by Trump and Clinton are a step too far, even for the routinely deadlocked FEC.
What does it say about the rule of law when the two candidates for the most powerful office in the world think they can flout the law and get away with it?
Watchdog organizations, the press and the public should hold candidates accountable for violating the law, and hold the FEC accountable for failing to enforce it. And we should all demand the next president take steps to reform the FEC and appoint commissioners who will actually uphold the law.
